# United States v. Muhammad Askari

> Court of Appeals for the Third Circuit · November 5, 1998 · 159 F.3d 774

URL: https://www.frixlaw.com/law-library/cases/9491615

## Case

- **Full name:** UNITED STATES of America v. Muhammad ASKARI, Appellant
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** November 5, 1998
- **Citations:** 159 F.3d 774; 1998 U.S. App. LEXIS 28106
- **Precedential status:** Published
- **Opinion:** Dissent by Garth
- **Judges:** Becker, McKee, Garth, Sloviter, Stapleton, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Roth, Lewis
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491615

## How later opinions describe it (automated extraction)

- noting that, in applying § 4244(d), District Court found a criminal defendant incompetent to be sentenced because he was “[un]able to cooperate with his attorney”

## Opinion text

GARTH, Circuit Judge,
dissenting:
In my opinion, despite the import of the new guidelines, the order of the district court should be affirmed. According to the newly enacted version of U.S.S.G. § 5K2.13, a diminished capacity departure is not warranted if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” (emphasis added). Askari entered a bank on Walnut Street in Philadelphia on April 23, 1992 with his hand underneath his shirt so as to convey the impression that he was carrying a loaded gun that he was prepared to use. He repeatedly told the bank tellers to put the money on the counter, and told one teller that she had three seconds to give him the money. See United States v. Askari, 140 F.3d 536, 538 (3d Cir.1998).
Askari’s sentence should be affirmed without remand because his conduct involves a serious threat of violence. By conveying the impression that he was carrying a loaded gun and was prepared to use it, Askari created a serious threat of violence. Although his cocked forefinger was not likely to have led to much damage, an on-site law enforcement officer, a bank security officer, a bank patron, or even a bystander would have been justified in responding to Askari’s actions through violent means. Askari’s threat was a threat of violence, and raised a substantial possibility of violent conduct in response. Compare United States v. Hunn, 24 F.3d 994, 997 , 997 n. 5. (7th Cir.1994) (holding that a bank robber who stated that he had a gun in his coat was eligible for two point enhancement for making a death threat even though robber was simply pointing his finger through his coat, and noting that whether he actually had a gun was “immaterial”).
Accordingly, I see no need to remand this case to the district court, as Askari’s actions and his undisputed felony background (see Maj. Op. at 776 n. 2) must lead to the same sentence originally imposed. I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491615. Public record. Not legal advice.